This essay critically evaluates Richard Thaler and Cass Sunstein's proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that under gird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients' tort law rights. There are many ways in which nudges could be part of reforming medical malpractice litigation and improving the quality of medical care. Thaler and Sunstein's use of behavioral economics to explore new ways of addressing persistent problems is an invitation to innovative and meaningful policy reform. Our criticisms of their medical malpractice waiver proposal are designed not to disparage this effort, but to remind policymakers of the importance of careful consideration of the facts before choosing a path for change.

New Mexico Senate rejects bill that would have required drug companies to report gifts that they give to health providers. (Forbes/AP)

FDA consolidates operations at former Navy site in White Oak, Maryland. (NY Times)

New Lawsuits

Four passengers injured in the Continental crash last December (where the plane veered off the runway into the ravine) have sued Boeing. At least 8 other passengers already have suits against Continental. (AP)

The woman injured in Morgan Freeman's car accident last August announced her intent to sue the actor. (TMZ)

Three New Jersey women sue dentist who referred them to an oral surgeon who allegedly groped them as they recovered from surgery. (They'd already sued the surgeon). (Star Ledger)

Trials, Settlements & Other Ends

Strange things in Illinois - a settlement of $2.5 million in a suit against a homeowner who did not buy alcohol or even know that plaintiff was drinking in her home. (Jonathan Turley)

Opening statements were made yesterday in the New Brunswick, NJ med mal trial of a dentist and oral surgeon. A 21-year-old man died in August 2005 the day after his wisdom teeth were pulled when his larynx swelled and blocked his airway. Family members are suing the dentist and oral surgeon who treated him, arguing that both knew the patient suffered from an immune deficiency disease that caused parts of his body to swell after trauma. The dentist and surgeon blame each other and the patient for the death. The Star-Ledger has the details.

H.B. 1603 passed the Oklahoma House Judiciary Committee and now moves to the full House. The bill would "cap non-economic damages; require an expert witness for pre-certification of a lawsuit; and eliminate joint and several liability, among other reforms." More from Insurance Journal.

The University of Montana's law and journalism schools are blogging the criminal case involving W.R. Grace and the harms in Libby, Montana. Past posts about Libby and WR Grace, mostly by guest blogger Andrea Peacock, are here.

On Monday, the Oregon Senate passed a bill that would substantially increase public liability tort limits. Currently, liability against a government agency is capped at $200,000. The new bill raises the cap and sets up a two-tier system depending on whether the suit is against the state or a local government. As LegalNewsline reports, for claims against state government, the bill increases "the liability cap $100,000 a year to a maximum of $1.5 million by 2015 for individual claims against state government. The plan would increase the cap to $3 million for all claims from a single incident." The Oregonian also has more.

Jeffrey Young at the Hill reports that President Obama has scheduled a health reform summit for next week:

"Everybody here understands a lot of the tradeoffs involved in health care and that there are no perfect solutions, but in the sound-bite political culture that we've got, it's very hard to communicate that," Obama said, adding that he wants to "educat[e] the public" on "what these tradeoffs are" and why they are necessary to reform the health care system.

A jury recently awarded about $80,000 to a group of undocumented workers who sued an Arizona rancher for a variety of claims. Their conspiracy and civil rights claims were dismissed by the judge; they prevailed on assault and intentional infliction of emotional distress.

A few years ago, a woman died after falling from an amusement ride on which the owner had allegedly bypassed the safety devices. Specifically, he had overridden the microswitches that prevented the ride from operating if the restraints were not locked in place; hers were not and she fell to her death. You can see a collection of my posts on that case at MassTort.org here.

In reaction, the state imposed insurance requirements (which took effect previously) and required state inspection, which is now in effect.